Page 13 Access Broadband over Power Line Court Decision

In its reconsideration order, after receiving new studies
conducted in the United Kingdom, the Commission found that those studies
did not support a change to the extrapolation factor in light of the
factual disagreements and uncertainty discussed in the initial order.
The Commission stated: “No new information has been submitted that
would provide a convincing argument for modifying this requirement at
this time.” Amendment of Part 15 Regarding
New Requirements and Measurement Guidelines for Access Broadband Over Power Line Systems, Mem. Op. and
Order, 21 F.C.C.R. 9308, 9317-18 ¶ 26 (2006).

Applying the State Farm doctrine,
the majority opinion remands for further explanation from the FCC. See
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463U.S. 29 (1983).
Although I recognize that the reasoned decisionmaking requirement of State
Farm is sometimes more art than science, more
Rorschach than rule of law, I do not agree with the majority opinion that
the FCC needs to say more in this case.

Section
706 provides that courts set aside agency rules that are “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). Arbitrary-and-capricious review
under § 706 is “narrow,” and “a court is not to
substitute its judgment for that of the agency.” State
Farm, 463 U.S. at 43. A reviewing court “may
not set aside an agency rule that is rational, based on consideration
of the relevant factors, and within the scope of the authority delegated
to the agency by the statute.” Id. at 42. We thus must ‘“uphold a decision of less than ideal clarity if
the agency’s path may reasonably be discerned.”’ Id. at
43 (quoting Bowman Transp. Inc. v. Arkansas-Best
Freight Sys., Inc., 419 U.S. 281, 286 (1974)).

v. EPA, 115 F.3d 979, 1004 (D.C. Cir. 1997); MCI Cellular Tel. Co. v. FCC, 738 F.2d 1322, 1333 (D.C. Cir. 1984). In its two orders, the Commission reasonably stated that the evidence
submitted by commenters was conflicting, that the new evidence submitted
on reconsideration was not sufficiently conclusive to require a change,
and that it therefore would continue (for now) to adhere to its long-standing
extrapolation factor with respect to broadband-overpower-lines technology.
This explanation makes sense. And State Farm does
not require a word count; a short explanation can be a reasoned explanation.

* * *

The
two issues on which I write separately prompt a broader observation. In
appropriate cases or controversies, courts of course must be vigilant
in ensuring that agencies adhere to the plain text of statutes imposing
substantive and procedural obligations. See, e.g., Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842-43 & n.9 (1984) (Chevron “Step
1”); Vermont Yankee Nuclear Power Corp.
v. Natural Res. Def. Council, Inc., 435 U.S.
519, 558 (1978). But it bears repeating that § 553 of the APA requires
only a notice providing a “description of the subjects and issues
involved”; time for interested persons to comment; and a “concise
general statement” of the rule’s “basis and purpose.” 5
U.S.C. § 553. Courts have incrementally expanded those APA procedural
requirements well beyond what the text provides. And courts simultaneously
have grown State Farm’s “narrow” § 706
arbitrary-and-capricious review into a far more demanding test. Application
of the beefed-up arbitrary-and-capricious test is inevitably if not inherently
unpredictable – so much so that, on occasion, the courts’ arbitrary-and-capricious
review itself appears arbitrary and capricious.

Over
time, those twin lines of decisions have gradually transformed rulemaking – whether
regulatory or deregulatory rulemaking – from the simple and speedy
practice contemplated by the APA into a laborious, seemingly never-ending
process. The judicially created obstacle course can hinder Executive Branch
agencies from rapidly and effectively responding to changing or emerging
issues within their authority, such as consumer access to broadband, or
effectuating policy or philosophical changes in the Executive’s
approach to the subject matter at hand. The trend has not been good as
a jurisprudential matter, and it continues to have significant practical
consequences for the operation of the Federal Government and those affected
by federal regulation and deregulation.